Citation Nr: 1455133
Decision Date: 12/15/14 Archive Date: 12/24/14
DOCKET NO. 09-40 226 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUES
1. Whether there was clear and unmistakable error (CUE) in the August 2005 rating decision denying the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for residuals of a rib resection, including long thoracic nerve palsy, right arm and back pain, and winged scapula.
2. Whether new and material evidence has been submitted to reopen the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for residuals of a rib resection, including long thoracic nerve palsy, right arm and back pain, and winged scapula.
REPRESENTATION
Veteran represented by: John S. Berry, Attorney at Law
ATTORNEY FOR THE BOARD
Nicole L. Northcutt, Counsel
INTRODUCTION
The Veteran served on active duty in the military from June 1986 to January 1990 and from January to March 1991.
These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2009 and March 2014 by the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). The May 2009 rating decision denied the Veteran's claim to reopen his claim for compensation under 38 U.S.C.A. § 1151 for residuals of a rib resection, including long thoracic nerve palsy, right arm and back pain, and winged scapula. The Board is assuming jurisdiction of the Veteran's CUE claim, adjudicated by the March 2014 rating decision, pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
With regard to the Veteran's claim to reopen, the Board denied the Veteran's appeal of this decision in May 2011, and the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans' Claims (Court). In October 2012, the Court issued a Memorandum Decision vacating the Board's decision, concluding that the Board failed to adequately discuss whether certain evidence of record was new and material and therefore sufficient to reopen the Veteran's claim, and remanded the case to the Board.
In turn, the Board remanded the case in May and August 2013 to the RO to determine whether the Veteran was asserting CUE in the final August 2005 rating decision in which the RO initially denied his claim for compensation under 38 U.S.C.A. § 1151 and to conduct development related to this claim, as well as the claim to reopen. In March 2014, the RO issued a rating decision denying the Veteran's CUE claim, and the Veteran submitted a notice of disagreement with this rating decision in October 2014.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
As referenced in the May 2013 Board remand, the Board directed that the Veteran be asked to clarify whether he was asserting CUE in the August 2005 rating decision that initially denied his claim. In August 2013, the Board determined that the Veteran had asserted a CUE claim with the requisite specificity, and thereafter directed the RO to adjudicate this CUE claim and conduct additional development relevant to both the CUE claim and the claim to reopen. Significantly, the Board explained that if the CUE claim was granted, the claim to reopen would be rendered moot, as a finding of CUE would vitiate the finality of the August 2005 rating decision.
Per the Board's directives, in March 2014, the RO issued a rating decision adjudicating the Veteran's CUE claim. However, while the Veteran filed a timely notice of disagreement in October 2014 voicing his disagreement with the RO's denial of the CUE claim, the Veteran has not yet been provided with a related statement of the case, which must be accomplished. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
As the Veteran's CUE claim, and related appeal, must be fully adjudicated before the Board may address the Veteran's claim to reopen, the Board defers a decision on the claim to reopen until the final resolution of the Veteran's appeal of his CUE claim.
Accordingly, the case is REMANDED for the following action:
1. Issue a statement of the case addressing the Veteran's claim asserting CUE in the August 2005 rating decision that initially denied his claim for compensation under 38 U.S.C.A. § 1151 for residuals of a rib resection, including long thoracic nerve palsy, right arm and back pain, and winged scapula. Inform the Veteran that if he would like the Board to address this issue, he must file a timely substantive appeal (VA Form 9) of the claim.
2. Then, readjudicate the claim to reopen the claim for compensation under 38 U.S.C.A. § 1151 for residuals of a rib resection, including long thoracic nerve palsy, right arm and back pain, and winged scapula. If the benefit sought remains denied, furnish the Veteran and his attorney with a related supplemental statement of the case.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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M. N. HYLAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).